THE INDUSTRIAL TRIBUNALS

CASE REF:    551/13

CLAIMANT:			Ivan Allen 

RESPONDENTS:		Jacqueline Clarke & Dennis Clarke
t/a Moes Grill Antrim

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that the claimant was not an employee of the respondent within the meaning of Article 3 of the Employment Rights (Northern Ireland) Order 1996.  Even if he were deemed to be an employee, his claim of unfair dismissal is out of time and it was reasonably practicable for him to have presented his tribunal claim within time.  His unfair dismissal claim is therefore dismissed.

Constitution of Tribunal:

Chairman:		Mr S A Crothers (sitting alone)

Appearances:

The claimant appeared and represented himself.

The respondents were represented by Mr R Craig, Solicitor, of Mills Selig Solicitors.

Title of the Respondent

1.	The title of the respondent was amended to that shown above.

The Claim

2.	The claimant claimed unfair dismissal.  The respondents contended that the claimant was not an employee and, that even if he proved he was an employee, his claim was out of time.

The Issues

3.	The issues before the tribunal were as follows:-

(1)	Was the claimant an employee of the respondent?

(2)	If so, was his unfair dismissal claim made within the statutory time limit of three months and, if not, should the time limit be extended?

Sources of Evidence

4.	The tribunal heard evidence from the claimant and from Dennis Clarke on behalf of the respondents.  It also had before it the claim form and the respondents’ response.

Findings of Fact

5.	Having considered the evidence in so far as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	The claimant provided door security services at the respondents’ business premises.  Since in or about August 2012 the respondents scaled back entertainment at weekends and required door staff on approximately two Friday nights per month.  The claimant had provided door services for the respondents on a regular basis on Friday nights and occasionally on Saturday nights.  He was in a pool of several individuals who worked a rota between them.  The claimant was notified in advance as to when he would be required.  He was paid £12.00 per hour but was not treated as an employee for tax or national insurance purposes.  He was not on the respondents’ employee pay roll.  The tribunal is satisfied, on the evidence, that the respondents were under no obligation to provide the claimant with work and, likewise, the claimant was under no obligation to work if he chose not to do so.  No correspondence or contractual documentation exists in relation to the claimant.  The claimant had performed door security services for the respondents for in excess of three years prior to December 2012, although it was evident to the tribunal that he did not hold the relevant door licence owing to a past history.  He claimed that the decision to refuse him such a door licence was under appeal when the arrangement with the respondents ended.  

(ii)	The tribunal is satisfied that an incident occurred in the respondents’ premises on 30 November 2012, which has led to PSNI involvement.  Dennis Clarke spoke to the claimant together with another individual in the car park on Saturday 1 December 2012 and told both of them to leave the car park.  The tribunal is also satisfied that the claimant, who was a casual worker,  was not offered any work by the respondents after 30 November 2012 although he did contact Mr Verner, an employee of the respondent, a few days after the incident informing him that he would be “taking over the door”.  The tribunal does not accept the claimant’s explanation that he failed to present his claim to the tribunal until 14 March 2013 because he was trying to find out the reason why he was not sacked.  Furthermore, the claimant’s reference to Saturday 21 December in his claim form is incorrect as 21 December 2012 was a Friday.  

The Law

6.        (1)	Article 3 of the Employment Rights (Northern Ireland) Order 1996 (“the 	Order”) defines an employee as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”.  A contract of employment is defined as meaning “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.  A contract of service, where an employee is his master’s servant, must be distinguished from a contract under which a person provides services as an independent contractor or as a self employed individual under a contract for services.  

(2)	The case of Ready-Mixed Concrete (South East) Limited –v- Minister of Pensions and National Insurance (1968) 2Q B 497 established certain key tests for the existence of a contract of service as follows:-

(i)	An agreement must exist to provide the servant’s own work or skill in the performance of service for the master.  

(ii)	In return for a wage or remuneration (mutuality of obligation).

(iii)	There is control of the servant by the master (the control test).

(iv)	Other factors consistent with a contract of service must be considered, although the first three factors are central in determining whether an employment relationship exists.

	(3)	Mutuality of obligation is the obligation on the employer to provide work and the obligation on the individual to accept that work (Carmichael –v- National Park 2000 IRLR 43).  That case concerned a series of temporary contracts, the issue being whether, looking at the overall arrangement, including the time between the periods of work, there was an employment relationship.

(4)	The cases of Motorola –v- Davidson & Another (2001) IRLR 4 and Brook Street –v- Dacas (2004) EWCA Civ 217, relate to the question of who exercised day to day control over the individual.  

(5)	It appears from the authorities that a person engaged under a contract of service would normally be told where to work and what his/her working days and hours would be.  Such an individual would also be subject to the employer’s day to day direction, rules, and policies relating to employees, particularly in relation to standards at work.  On the other hand, a self employed individual under a contract for services would normally work more independently and be less likely to be submitted to the same controls or supervision exercised over an employee.  Furthermore, a self employed person would normally determine his/her own working days and hours.  However the control test is not in itself sufficient to determine the question of employment status as all of the elements of the contract (whether written or oral) have to be examined.  Moreover, the fact that parties choose to operate their relationship on a self employed basis for tax purposes does not mean that a court will find that no employment relationship exists.

(6)	The law in relation to the period for presenting a tribunal claim is set out in Article 145 of the Order.  The tribunal considered the leading case of Palmer & Saunders –v- Southend-on-Sea Borough Council (1984) IRLR119.  This case held that the words “reasonably practicable” lie somewhere between reasonable on the one hand and reasonably physically capable of being done on the other.  It further held that the best approach is to read “practicable” as the equivalent of “feasible” and ask, “was it reasonably feasible to present the complaint to the employment tribunal within the relevant three months?”  

Submissions

7.	The claimant contended that he believed he was an employee and had a job with the respondents.  He submitted that he did not understand the reference to “casual”.  Mr Craig urged the tribunal to find against the claimant on the issues before it and referred to the Carmichael case (referred to above), together with the case of Thomson –v- Fife Council (2005) UKEAT 0064_04_2608 to contend that there was no mutuality of obligation as between the claimant and the respondent.  He submitted that the Thomson case held that there requires to be some degree of commitment on both sides and that a one sided commitment or obligation is not enough to establish mutuality of obligation.  In relation to the control test, he submitted that the claimant was doing work as and when requested, and the respondent had no control over him.  He also submitted that if the claimant decided not to do work the respondent could not do anything about it.  However, if the claimant was an employee the respondent could insist on him performing work when work was available.  He also submitted that because of the nature of the incident the respondent had a right to ask anyone to leave the premises for any reason.

Conclusions

8.	Having applied the relevant principles of law to the facts as found, the tribunal concludes that the claimant was not an employee within the definition contained in Article 3 of the Order.  It is not satisfied that there was an intention on behalf of the respondents to form an employment relationship with the claimant and, in any event, whatever the claimant believes to have been the case, there is insufficient evidence before the tribunal to show either mutuality of obligation or to discharge the control test formulated by the case law.  In any event, even if the claimant were to prove that he was an employee, there is no good reason or explanation proffered to the tribunal as to why he could not have presented his claim to the tribunal before 14 March 2013, particularly in light of the finding of fact that the relevant incident occurred on 30 November 2012.  The claimant’s claim of unfair dismissal is therefore dismissed.

Chairman:

Date and place of hearing:  23 July 2013, Belfast.

Date decision recorded in register and issued to parties: